2. The complainant (Engen) was hired by Harbor Campus in 1999 to provide direct patient care.

3. During the time period relevant here, Scott Geller (Geller) was Harbor Campus's director of operations, and Stephanie Elliott a team leader. Elliott was Engen's immediate supervisor, and Elliott reported to Geller.

4. In August of 2000 and July of 2002, Engen received generally favorable performance evaluations from Elliott.

5. On November 22, 2002, Elliott issued Engen a Performance Action Plan for failing to properly dispose of a used hypodermic needle.

6. On January 9, 2003, Elliott issued Engen a Performance Action Plan for failing to dispense medication to a resident. Although Engen did not agree she was responsible for this failure, she did not bring this to Elliott's attention or write a comment on the plan document.

7. In February of 2003, Geller began giving Engen hugs and shoulder rubs when she was upset or emotional. Geller gave similar hugs and shoulder rubs to other staff. At that time, Engen did not object to these physical actions or consider them inappropriate.

8. During one week in early March of 2003, Engen and her fiancé‚ separated. Engen was upset and emotional about this separation and discussed it with others at work, including Geller. Geller told Engen he knew how she felt, and related to her similar difficulties he and his wife had experienced.

9. During this one-week period of time, the frequency of the hugs and shoulder rubs Geller gave Engen increased.

10. Also during this one-week period of time, Geller made two comments to Engen that she "looked good." The first occurred after Engen joked to Geller, when there were holiday treats at the work site, that the staff did not need them because "we are plump enough." Geller responded to Engen, "You're not fat; you look good."

11. After Engen and her fiancé‚ reconciled, Engen told Geller his comments about her body, and his touching her, made her uncomfortable. Geller did not touch Engen after this or make any further comments about her body.

12. Some time early in 2003, Engen told Elliott that she felt it was inappropriate for Geller to be hugging or otherwise touching members of the staff.

13. On April 1, 2003, Elliott issued Engen a Performance Action Plan for failing to assure that a resident had taken his medications. The plan document stated that, "Future incidents of this nature concerning meds will result in disciplinary action up to and including termination."

14. On April 28, 2003, Elliott issued Engen a Performance Action Plan for again failing to assure that a resident had taken his medications. The plan document contained the same warning as that issued on April 1.

15. On June 28, 2003, Elliott issued Engen a Performance Action Plan for failing to properly dispose of an insulin syringe. The plan document stated that, "Future incidents of this nature will result in disciplinary action."

16. On August 17, 2003, Theresa Sale, one of Engen's coworkers, asked Engen for assistance in dealing with a difficult elderly resident. While Engen was assisting the resident in arising and dressing, the resident became combative and dug her fingernails into Engen's arm. Engen grabbed the resident's hand and forcibly removed it from her arm. In doing so, the resident's wrist was bruised.

17. When second shift workers Nicole Roos (Roos), Kathy Fitzpatrick (Fitzpatrick), and Kay Wulff (Wulff) reported to work on August 17, they noticed the bruise on the resident's wrist. Geller was notified.

18. Geller phoned Elliott the evening of August 17, and directed her to contact Roos, Fitzpatrick, Wulff, and Sale, and to ask them what they knew about the resident's injury. Geller directed Elliott not to contact Engen.

19. Elliott contacted Roos, Fitzpatrick, Wulff, and Sale; took notes of her conversations with them; and requested that Roos and Sale prepare a written statement. Roos and Sale did prepare such statements. These statements were provided to Geller on Monday, August 18.

20. In her statement (exhibit R-3), Roos indicated that Engen had described the situation to her when Roos reported to work on August 17; and that Engen had admitted stating to the resident "We are going to do this the easy way or the hard way and apparently you want to do it the hard way;" and then had pulled the resident up.

21. In her statement (exhibit R-4), Sale indicated:

when attempting to get the resident out of bed on August 17, the resident started kicking her,

Sale then went out in the hall and told Engen that the resident was kicking her and she was just going to let her sleep in,

Engen told Sale that the resident did that every day, and "would be getting up,"

Engen went into the resident's room, pulled the top sheet off, and began to pull the resident out of bed,

the resident began swinging her arms and trying to hit Engen,

Engen told the resident, "We can either do this the easy way or the hard way," and

as the resident continued to struggle, Engen became more forceful.

22. Elliott recorded from her conversation with Fitzpatrick (exhibit R-5) that Engen had told Fitzpatrick at the shift change that Engen had said to the resident, "Either we're going to do this the hard way or the easy way," and had laughed when telling Fitzpatrick that the resident had picked the hard way. Elliott also recorded that Fitzpatrick told her that, when she spoke with the resident the evening of August 17, the resident told her that one of the "girls" had bruised her wrist when pulling her up in order to get her out of bed.

23. Elliott recorded from her conversation with Wulff that Wulff was with Fitzpatrick when she asked the resident how her wrist got bruised, and the resident had said, "Oh, those girls - they grab me. They pull so hard."

24. On Monday, August 18, Engen met with Geller and Elliott. Engen was given an opportunity to offer her version of what occurred on August 17. Geller told Engen she was suspended pending the completion of an investigation.

25. Later on August 18, Engen returned to the facility with her mother, and they met with Geller. Geller told Engen during this meeting that he did not believe her version of events, and had decided the night before that she should be terminated for abusing the resident. In escorting Engen and her mother from the facility, Geller became angry, grabbed Engen by the shoulder and pushed her against the building, and told Engen that she was not to return to the facility.

26. On August 19, Geller contacted Engen and offered her the opportunity to meet to discuss the result of the investigation. Engen advised Geller that she had hired an attorney, and her attorney would contact Geller. Geller told Engen she could bring in the National Guard and it would not change his decision.

27. When Engen's mother came in to the facility to pick up Engen's final paycheck, Geller at first told her he did not know where Engen's personal belongings were, even though he eventually retrieved them from the nurses station.

CONCLUSIONS OF LAW

1. Harbor Campus is an employer within the meaning of the Wisconsin Fair Employment Act.

2. The charge of sexual harassment was not timely filed.

3. The complainant failed to sustain her burden to prove that she was discriminated against on the basis of sex as alleged.

4. The complainant failed to sustain her burden to prove that she was retaliated against for engaging in a protected fair employment activity as alleged.

ORDER

The October 7, 2005, deposition of the complainant is marked as exhibit R-6, and received into the hearing record. This complaint is dismissed.

Dated and mailed February 22, 2008engenki . rrr : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

Scope of issues

The issues before the ALJ included sex discrimination, sexual harassment, and fair employment retaliation. The ALJ decided that the complainant had not sustained her burden as to the discrimination and harassment issues, but had as to the retaliation issue.

The respondent appealed the ALJ's decision as it related to the retaliation issue.

The complainant, however, unambiguously stated in her brief to the commission that she was not appealing the ALJ's decision as it relates to the discrimination and harassment issues (see page 7 of August 2007 brief). As a result, the complainant has waived any objection to the ALJ's decision as it relates to those issues.

ALJ rulings

The respondent challenged two of the ALJ's rulings in its appeal to the commission.

First, the respondent attempted to offer and move the admission of the complainant's discovery deposition. The ALJ did not mark the deposition, did not maintain a copy of it in the file, and ruled that this deposition may be used only for impeachment purposes and allowed the respondent to use it only for that purpose. However, as Wis. Stat. § 804.07(1)(b) states, "the deposition of a party...may be used by an adverse party for any purpose."

As a result, the commission has marked this deposition as exhibit R-6 and received it into the record as an exhibit.

The respondent's second challenge relates to the ALJ's ruling that the respondent could not inquire into discussions between the complainant and her counsel during a break in the hearing in the middle of her cross-examination. In the absence of a request by the respondent that interactions between the complainant and her attorney during the break were prohibited or limited in a particular way, or a directive by the ALJ to such effect; considering the scope of the attorney-client privilege; and taking into account the lack of clear guidance or precedent in regard to such a circumstance, it is not clear that the ALJ's ruling was erroneous or improper, and it is not overturned.

Retaliation

The first thing the commission notes is that, permeating the arguments of both parties is the mistaken premise that, in order to be considered sexual harassment, the subject action is required to have a sexual component. Although this is true if only Wis. Stat. § 111.36(1)(b) is invoked, which incorporates by reference the definition of sexual harassment set forth in Wis. Stat. § 111.32(13), it fails to take into account Wis. Stat. § 111.36(1)(br), which prohibits engaging in harassment consisting of unwelcome verbal or physical conduct, of any kind, directed at an individual because of that individual's gender. This distinction was drawn and fully discussed by the commission in
Braunschweig v. SSG Corp., ERD Case No. CR200400816 (LIRC Aug. 31, 2006).

In addition, although the complainant asserts that the respondent engaged in retaliation when it provided an unfavorable reference to a prospective employer after her termination, there is no evidence in the record relating to such a reference, and it is clear the complainant failed to sustain her burden of proof in this regard.

Protected opposition activity

A claim of retaliation, like other cases of alleged discrimination, follows the same burden shifting framework that was initially set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973). First, the complainant must establish by a preponderance of the evidence a
prima facie case of retaliation. Second, if the complainant succeeds in proving the
prima facie case, the burden shifts to the respondent to articulate a legitimate, nondiscriminatory reason for its action. Third, should the respondent carry this burden, the complainant then has an opportunity to prove that the reason offered by the respondent for its action was a mere pretext for retaliation.
See, Matthews v. Bassett Bedding, ERD Case No. 8902772 (LIRC Oct. 27, 1993).

To establish a prima facie case of retaliation for opposition, a complainant must initially prove that (1) she engaged in statutorily protected opposition, (2) the respondent took an adverse action against her, and (3) a causal connection exists between the protected opposition and the adverse action.
Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989).

In order to prevail here, the complainant would have to show, preliminarily, that she engaged in a protected opposition activity.

In order to violate the prohibition against retaliation, an employer must have a belief that the person retaliated against is raising some kind of claim that discrimination is occurring. If an employer does not have such a belief, it obviously cannot be motivated by such a belief in conduct it undertakes. Thus, it is an essential element of a claim of retaliation that the complainant prove that the employer was aware that the complainant engaged in protected activities.
Acharya v. University of Wisconsin (LIRC, January 19, 1982), Hochstadt v. Worcester Foundation for Experimental Biology, 425 F.Supp. 318 (D. Mass.),
aff'd 545 F.2d 222 (1st Cir. 1976). In a number of cases in which an employe has protested an employment action to the employer, but in doing so has not indicated a belief that discrimination is being opposed, courts have found that the employer's reaction to that protest was not prohibited retaliation.
Theiss v. John Fabick Tractor Co., 532 F.Supp. 453 (E.D. Mo. 1982),
McCluney v. Joseph Schlitz Brewing Co., 728 F.2d 924 (7th Cir. 1984),
aff'g. 34 FEP 271 (E.D. Wis. 1982), Moncada v. El Paso Natural Gas Company, 40 FEP 556 (W.D. Tex. 1986).
See also Keller and Keller v. City of Brodhead (LIRC, April 29, 1987), to the same effect.

The commission has upheld this principle in several cases, including, more recently,
Moller v. Metavante, ERD Case No. 200103621 (LIRC Nov. 13, 2003)(activity not protected even though respondent aware that complainant believed he was being treated differently than another worker, when record did not establish that respondent aware that complainant believed this different treatment based on his sex);
Stichmann v. Valley Health Care Center, ERD Case No. 200104418 (LIRC June 14, 2005)(activity not protected where complainant protested differences in assignment of duties but did not state a belief that this difference was due to his age or any other protected basis); and
Braunschweig, supra. (statement by male complainant to respondent that too many women in office not protected activity because did not express or imply belief by complainant that he had been the victim of gender bias).

The complainant's proof of her protected opposition activity consists solely of the following:

(1) (page 30 of transcript)

Q: At any point did you tell Mr. Geller to stop touching you?

A: Yes.

Q: When did you do that?

A: After I had gotten back with my fiancé‚...I had told him I didn't
feel comfortable with the comments he had made about my body (2) and had asked him to not say those things to me.

Q: Did you ever ask him to stop putting his hands on you or words to that effect?

This evidence is not sufficient to show that the respondent would reasonably have been aware that the complainant was raising a claim of sexual harassment within the meaning of Wis. Stat. § § 111.36(1)(b) or (br).

The complainant testified she "believed" that, at some point in time, she
told Geller not to touch her any more, which he had done up to that point by
hugging her and by rubbing her shoulders/arms. She did not expressly state
that she believed such touching constituted harassment, and it is not
necessarily or even reasonably implicit from the evidence of record that
Geller should have interpreted her statement that way. (4) For example, her statement could have been reasonably interpreted
by Geller, given the circumstances, as indicating that she felt such
interactions were unprofessional or inappropriate in the workplace, could be
misinterpreted by coworkers or others, or were now unnecessary because she
and her fiancé‚ had reconciled and she was no longer feeling distressed and
emotional about their relationship (5).

The complainant also testified that she told Geller she did not feel comfortable with the comments he had made about her body and asked him not to say that type of thing to her. These comments consisted of one, in response to complainant jokingly referring to herself as "plump," that she was not fat and looked good; and a second similar comment during the same week while she was sharing her emotional distress regarding her breakup with her
fiancé‚ with coworkers and apparently willingly accepting Geller's expressions of sympathy and empathy. As above, the complainant did not state that she believed such comments constituted harassment, and it is not necessarily or even reasonably implicit from the evidence of record. For example, her statement could have been reasonably interpreted by Geller, given the context, as indicating that discussion of her weight made her uncomfortable, that discussion of weight or looks was unprofessional or inappropriate in the workplace, or that she no longer needed reassurances from Geller because she was no longer feeling distressed and emotional about her relationship with her
fiancé. As a result, the complainant failed to sustain her burden to prove that she engaged in a protected opposition activity.

Causal connection

Even if the complainant had successfully proved that she had engaged in a protected opposition activity, she did not prove a causal connection between this activity and the remaining adverse employment actions at issue here,
i.e., her suspension and discharge.

Moreover, an examination of the relevant circumstances also does not support such a causal connection.

The complainant concedes that, between mid-March 2003, when the claimed protected opposition activity occurred, and June 28, 2003, she committed three significant medication errors for which she received warnings that her job was in jeopardy. If Geller had been intent on retaliating against the complainant, it would have made more sense if he would have seized one of these opportunities to do so.

The complainant failed to prove that there was a causal connection between her claimed protected opposition activity and her suspension/discharge.

Based on her failure to prove that the respondent was aware that she believed she was being harassed, and that there was a causal connection between her claimed protected opposition activity and her suspension/discharge, the complainant failed to establish a
prima facie case of retaliation.

Pretext

If the complainant had successfully proved a prima facie case of retaliation, the burden would shift to the respondent to articulate a legitimate, non-discriminatory reason for her suspension/discharge. The respondent satisfied this burden by explaining that the complainant was suspended/discharged after it was reported that she had engaged in patient abuse.

The burden then shifts to the complainant to prove that this reason was a pretext for retaliation.

The record shows, through the complainant's testimony, that, although Geller did in fact provide the complainant an opportunity to explain her role in interacting with the injured patient (see page 39 of transcript), he did not believe her explanation and credited instead the statements made by complainant's coworkers, upon which he then relied to suspend/discharge her. These statements indicated that the complainant had been intentionally and unnecessarily rough with the patient, and this roughness had resulted in the patient's injury.

The complainant cites Geller's angry and violent reaction to the complainant during and after his meetings with her and her mother as establishing pretext. However, Geller's reaction does not necessarily or even reasonably lead to a conclusion of pretext. There were certainly reasons more immediate and more compelling for his reaction than complainant's somewhat ambiguous statements to him more than five months earlier,
e.g., the facility for which he was responsible was investigating a patient abuse complaint which could affect their license as well as his employment, and he had spent two hours speaking with the complainant about it and being confronted by her and her mother.

The complainant also argues that her suspension/discharge was not reasonably justified because she did not engage in the alleged patient abuse. However, since intent is a pertinent and necessary inquiry in a discrimination/retaliation case, the question of whether a respondent's asserted non-retaliatory reason is objectively correct can be considered irrelevant if it appears that the respondent genuinely believed it to be true. See,
Ford v. Lynn's Hallmark, Inc., ERD Case No. CR200301184 (LIRC June 27, 2005);
Moncrief v. Gardner Baking, ERD Case No. 9020321 (LIRC July 1, 1992);
Turner v. Manifold Services, Inc., ERD Case No. 200000679 (LIRC Jan. 31, 2002). As a result, the proper inquiry is not whether the complainant committed the patient abuse but instead whether Geller reasonably believed she did. The content of the statements by complainant's coworkers show that Geller would have been justified in forming such a belief, and the evidence in the record to the effect that Geller told the complainant he did not believe her version of events shows that Geller did in fact form such a belief.
Moreover, the complainant's denial that she had engaged in the alleged patient abuse is rendered less credible as the result of numerous inconsistencies in her hearing testimony, including but not limited to the following:

(1) On page 106 (6), the complainant testified that the last time Geller had touched her inappropriately was "toward the end of March." On page 93, she testified that he had stopped touching her in mid-March.

(2) On page 107, the complainant testified that the second comment occurred at the end of March/beginning of April. On pages 87-90, she testified both that the last comment had occurred during the one-week breakup period early in March, and that it had occurred between mid-February and mid-March.

(3) On page 93, the complainant testified that, in mid-March, after learning she and her
fiancé‚ had reconciled, Geller was no longer touching her inappropriately. In her prehearing deposition, the complainant testified that, after Geller learned she and her
fiancé‚ were back together, he made no further inappropriate comments, but continued the touching and hugging.

(4) On page 75, the complainant testified that she had no problems with her employment prior to January 29, 2003. However, after being shown Respondent's exhibit #1, the complainant admitted that she received negative performance reports on November 22, 2002, and January 9, 2003.

(5) On page 87, the complainant testified that, prior to the week in early March when she and her
fiancé‚ were separated, she had considered Geller's touching sexual. However, on page 86, the complainant testified that the only period of time she considered Geller's touching inappropriate was the period of time in early March she and her
fiancé‚ were separated.

(6) On page 98, the complainant testified that no negative performance reports were issued to her by Stephanie Elliott between March and August of 2003. After being shown Respondent's exhibit #2, the complainant had to admit that three such reports were issued, for incidents occurring on April 1, April 28, and June 28.

It should also be noted in this regard that the complainant testified that, if she had in fact engaged in the patient abuse described by her coworkers in their statements, the respondent would have been justified in suspending/discharging her.

The complainant also asserts that the fact that respondent began unjustifiably criticizing the quality of her work after she engaged in the claimed protected activity demonstrates pretext. However, the record shows that the respondent issued only three negative performance reports during this period of time, each of which the complainant concedes was reasonably justified. The record also shows that the respondent issued two such reports prior to the date of the claimed protected activity, one in November 2002, and one in January 2003. The complainant contends that the January 2003 report was not reasonably justified, undermining her assertion that the respondent's allegedly unfair treatment of her began after the date of her claimed protected activity.

The complainant finally argues that Geller's statement that he had decided to terminate her on August 17, before he would have had a chance to consider her version of events, demonstrates pretext, i.e., shows that he was motivated by something other than the merits of the patient abuse claim. However, given the incriminating and consistent information provided by four of complainant's coworkers on August 17, this is not a necessary inference. The complainant also points to Geller's directive to Elliott on August 17 not to contact or question her as further evidence that he was predisposed not to accord fair treatment to the complainant. However, there are numerous other plausible explanations for Geller's directive, including his desire to avoid providing the complainant an opportunity to influence her coworkers until each of their statements had been taken.

The complainant failed to establish that the reason offered by the employer for her suspension/discharge was a pretext for retaliation.

The complainant failed to sustain her burden to prove that she was retaliated against for engaging in a protected fair employment activity.

NOTE: The commission did consult with the ALJ before reversing his decision of the retaliation issue. The ALJ was unable to relate any specific demeanor impressions that influenced his decision. The commission's reversal was not based upon a differing view as to the credibility of witnesses, based upon their demeanor, but instead upon a differing view of what the hearing record in fact established, and upon a differing view of the applicable law.

(1)( Back )
Even though the complainant's charge was filed against both Harbor Campus
(aka Harbor Club) and Scott Geller, its operations manager and alleged
retaliator, the complainant withdrew her charge against Geller at hearing
(see page 6 of transcript).

(2)( Back )
These consisted of two comments during a week in early March, the first
after the complainant joked to Geller that she and others did not need any
more treats because "we're all plump enough," and Geller responded that she
was not fat and "looked good;" and the second "similar to the first" to the
effect that she looked good.

(3)( Back )
The record shows that Geller had a practice of hugging or rubbing the
shoulders of the workers at the facility.

(4)( Back )
See, Markgren v. Hartzell Manufacturing, Inc., ERD Case No.
199603186 (LIRC Sept. 2, 1990)(while it is not necessary to utter the words
"sexual harassment" in order to receive the protections of the Wisconsin
Fair Employment Act, there can be no unlawful retaliation unless the
respondent believes the complainant is raising a claim that discrimination
is occurring).

(5)( Back )
Note that the complainant testified (page 23) that Geller would give her a
hug if he felt she was having problems or feeling emotional, and that Geller
sympathized with her distress over her separation with her fiancé.

(6)( Back )
References to numbered pages are to pages in the hearing transcript.